409 F.

2d 1300

UNITED STATES of America ex rel. Hubert John GRIFFIN,

Relator-Appellant,
v.
Hon. Thomas C. MARTIN, Commissioner of Correction,
Onondaga County, Respondent-Appellee.
No. 464.
Docket 33161.

United States Court of Appeals Second Circuit.

Argued March 14, 1969.
Decided April 24, 1969.

Paul Taylor, Binghamton, N. Y. (Broome Legal Assistance Corp.,

Binghamton, N. Y.), for appellant.
Rodney A. Richards, Broome County Atty., Binghamton, N. Y., for
appellee.
Before MOORE and FEINBERG, Circuit Judges, and McLEAN, * District
Judge.
PER CURIAM:

Hubert John Griffin appeals from an order which denied his petition for a writ
of habeas corpus. Griffin was arrested on September 1, 1968, and charged with
a violation of an order of the Family Court of Broome County, New York,
requiring him to make payments of $25 a week to the Probation Department of
the Family Court. After a hearing without a jury, at which he was represented
by counsel, Griffin was found guilty of contempt due to his refusal to make
these payments, and on September 11, 1968, was sentenced to six months in
Onondaga County Penitentiary. An appeal from this judgment was taken to the
Appellate Division, Third Department, but this appeal was still pending,
undecided, at the time the district court made its determination of Griffin's
federal habeas corpus petition. Since that time, according to both counsel
before this court, the judgment of conviction has been affirmed by the

Appellate Division.
2

Griffin began State habeas corpus proceedings shortly after his conviction. The
writ was denied on September 26, 1968, in the Supreme Court of Onondaga
County in a determination unanimously affirmed by the Appellate Division,
Fourth Department, on December 5, 1968. (Taylor v. McMann, 31 A.D.2d 721,
297 N.Y.S.2d 519.) A motion for leave to appeal to the New York Court of
Appeals was then made and, on January 23, 1969, denied, 23 N.Y.2d 645, 298
N.Y.S.2d 1027, but this motion had not been heard or decided at the time of the
determination of the federal habeas corpus proceeding in the district court.

While in the midst of his various State appeals, Griffin filed the instant petition
for a writ of habeas corpus in the district court. This petition was denied on the
grounds that Griffin had failed to exhaust State remedies, that the Sixth
Amendment's trial by jury mandate was not applicable to him, that he had made
no showing that he was unable to make the prescribed payments and that there
was no constitutional question as to the sufficiency of the evidence. Griffin was
released from custody in February, 1969.

We affirm the decision of the district court. Although counsel for both sides
have agreed that the Appellate Division has affirmed the judgment of Griffin's
conviction (this determination, to our knowledge, is as yet unreported), it is
uncertain as to whether a motion for leave to appeal from the Appellate
Division to the New York Court of Appeals had been made or finally acted
upon. It is clear, at least, that no action on the direct appeal had been taken by
the Appellate Division at the time the habeas corpus petition was before the
district court. Furthermore, although Griffin has now finally exhausted his State
remedies on the State habeas corpus petition, the Court of Appeals' denial of
Griffin's motion for leave to appeal was entered on January 23, 1969 one
month after the district court determination. The district court was correct,
therefore, upon the papers before it, in dismissing the petition on the ground
that Griffin's State remedies had not been exhausted.

If we were to assume that all motions for leave to appeal in all these State court
proceedings have finally been decided and that Griffin's State court remedies
have at last been exhausted, we would have some doubt as to whether the
merits of his petition could now be considered in view of the fact that he has
been discharged from custody. It is true that Carafas v. LaVallee, 391 U.S. 234,
238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1967) held that "once the federal
jurisdiction has attached in the District Court, it is not defeated by the release of
the petitioner prior to completion of proceedings on such application." Query
whether jurisdiction ever "attached" in the district court in this case when

relator began a federal habeas corpus proceeding before he had exhausted his
State remedies. Carafas would not seem to cover the present case.
6

Considering the merits of this case, we would affirm the district court's denial
of the writ. Griffin claims error on the grounds that (1) imprisonment for
failure to pay a debt is unconstitutional, apparently because it discriminates
against the poor; (2) he was convicted without a jury trial; and (3) there was no
proof that his failure to pay was wilful. On the record, none of these arguments
has merit. Griffin was sentenced to jail for contempt, not debt. While we do not
quarrel with his contention, citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585,
100 L.Ed. 891 (1956), that the rich and the poor are entitled to equal justice
before the law, no attempt has ever been made by Griffin to explain or justify
his disobedience, or to show that he was or is financially unable to comply with
the $25-a-week order.

Nor was Griffin's constitutional right to a jury trial violated. As stated in the
opinion of the district court, "[t]he Sixth Amendment's trial by jury mandate
has been made applicable to the states through the Fourteenth Amendment, but
its application is limited to those cases `which were they to be tried in a
Federal Court would come within the Sixth Amendment's guarantee.'
Duncan v. Louisiana, 391 U.S. 145, 149, [88 S.Ct. 1444, 20 L.Ed.2d 491]
(1968)." In the federal courts, "any misdemeanor, the penalty for which does
not exceed imprisonment for a period of six months" is a "petty offense." 18
U.S.C. 1. Cheff v. Schackenberg, 384 U.S. 373, 378-380, 86 S.Ct. 1537, 16
L.Ed.2d 629 (1966). Under Section 454(a) of the Family Court Act of New
York, a respondent may be sentenced for "a term not to exceed six months" for
failure to obey an order of the Family Court. Griffin does not, therefore, have a
constitutionally protected right to a jury trial.

We further agree with the district court that "[t]he question of the sufficiency of
the evidence is a question of state law and does not rise to constitutional
dimensions. United States ex rel. Jenkins v. Follette, 257 F.Supp. 533
(S.D.N.Y.1965). See: United States ex rel. Birch v. Fay, 190 F.Supp. 105 (S.D.
N.Y.1961); United States ex rel. Sadowy v. Fay, 284 F.2d 426 (2d Cir. 1960)."

Affirmed.

Notes:
*

Of the Southern District of New York, sitting by designation